UNITED NATIONS: Australia should not sign UN women's rights protocol

by Rita Joseph

News Weekly, September 13, 2008

Australia is on the verge of signing a new United Nations women's rights protocol that will give an un-elected international committee powers to push for same-sex marriage and abortion in Australia. Rita Joseph analyses the legal ramifications of this protocol.

By ratifying the Optional Protocol to the United Nations' Convention on the Elimination of all Forms of Discrimination against Women, each state recognises the competence of the UN Committee on the Elimination of Discrimination against Women (CEDAW) - the body that monitors states parties' compliance with the convention - to receive and consider complaints from individuals or groups within its jurisdiction.

The protocol contains two procedures:

First, a communications procedure allows individual women, or groups of women, to submit claims of violations of rights protected under the convention to the UN committee. The protocol establishes that, in order for individual communications to be admitted for consideration by the committee, a number of criteria must be met, including one that domestic remedies must have been exhausted.

Second, the protocol also establishes an inquiry procedure enabling the UN committee to initiate inquiries into situations of grave or systematic violations of women's rights. In either case, states must be party to the UN convention and the protocol. The protocol includes an "opt-out clause", allowing states upon ratification to declare that they do not accept the inquiry procedure. The Optional Protocol entered into force on December 22, 2000, following the ratification of the 10th state party to the UN convention.

Reading through the list of the 90 state parties to the protocol, as of November 27, 2007, I find it disturbingly significant that some of the most persistent large-scale violators of the basic human rights of women are not on that list. China, with its one-child policy involving massive human rights abuse of women and children, especially girl children, is not going to grant petitioning rights any time soon to Chinese mothers who have been forced to abort their children.

India too is conspicuously absent from the list of signatories. India's immense sex-selective abortion programs, which continue to operate with impunity despite changes in the law, has produced a systematic "gendercide" of tragic proportions.

The radical feminist-dominated CEDAW committee has exhibited great reluctance to censure the sex-selective abortion of millions of girl children. The committee doubtless fears that any condemnation of any abortion whatsoever will expose the paucity of logic and morality in their extreme ideological commitment to abortion as a woman's absolute right that may not be restricted for any reason or in any way. This extreme ideological position is fundamentally incompatible with human rights obligations towards children at risk of abortion.

Burma too continues to defy all international censure. The CEDAW protocol has failed to deal with the human rights abuse of women and children, especially in the aftermath of the recent and disastrous cyclone damage. The curtain was lifted just slightly, just enough to appal the rest of the world with a glimpse of the totalitarian Burmese government's obsession with control and its total indifference to the well-being of its people.

The CEDAW protocol must appear somewhat impotent to people like the pro-democracy heroine Aung San Suu Kyi who, after nearly 19 years of house-arrest, is beginning to show signs of exhaustion. Her long, courageous defiance of the Burmese military junta, with its appalling human rights record, is not going to receive at this stage anything more than wordy resolutions from the UN CEDAW committee.

In the Sudan, too, neither the CEDAW protocol's "communication process" nor its inquiry procedure is likely to consider, in any timely manner, the monstrous abuse inflicted on women and girls in the dreadful camps of Darfur. It may well end up eventually before the CEDAW committee, or ultimately before the International Criminal Court; but this will all be too late to relieve the victims' plight right now in their desperate need.

Dangerous diversion

This whole CEDAW protocol project, though not without some merit, seems to me to be a diversion, perhaps a dangerous diversion, from the main game. It will generate most activity from exactly those countries that have fairly sound and comprehensive judicial systems, countries where the criteria for admissibility for one's complaint, the exhaustion of domestic remedies, can be quite easily met by just taking one's case up through the domestic courts.

However, in many countries that are not signatories to the protocol, women whose human rights have been abused cannot even get their cases heard in the very lowest courts. They can't even get to first base.

The former Howard Government's reasons for refraining from signing on to the UN protocol are still valid. These were:

1) Concern at the CEDAW committee's ineffectiveness, the large number of overdue country reports, and a huge existing backlog awaiting consideration. Country reports are often out of date by the time the committee considers them.

2) Other problems with the UN committee's performance to date include inconsistent rules of procedure and reporting guidelines, duplication of information required by the committee, varying quality of committee members and, at times, political bias and inaccuracy in their concluding observations.

3) The Bayefsky Report - a study undertaken by Canadian academic Professor Anne Bayefsky of the treaty-monitoring system - validated the Howard Government's reservations about the competence of the committees. The report noted different criteria being used to judge human rights conditions in different countries.

4) Concern that it would send the wrong message for Australia to sign on to another individual complaints mechanism while seeking to reform the system.

5) The rights of Australian women to seek redress against discrimination are already reasonably well catered for in a very accessible domestic judicial system that takes human rights abuse very seriously.

Ideologically skewed

To these points I would add my observation that the majority of CEDAW committee members have ensured that the committee's interpretation of the UN women's convention has been ideologically skewed toward a radical feminist reinterpretation. These members simply cannot be trusted to make judgments consistent with the principles originally agreed upon by the original parties to the UN convention.

My distrust arises from Australia's past experience with both the CEDAW committee's criticisms of our own country's reports and the UN Human Rights Committee's decisions, in the cases of Nicholas Toonen v. Australia (1994) and of Edward Young v. Australia (2003), to condemn laws against homosexual acts as violating the First Protocol to the International Covenant on Civil and Political Rights (ICCPR).

In the Toonen case, the UN committee exceeded its legitimate mandate: it introduced a new set of human rights called "sexual orientation" rights. It declared that "the reference to 'sex' in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation". The UN General Assembly has had a long history of considered but firm rejection of "sexual orientation" as a specific basis for human rights. The CEDAW committee has no mandate to direct countries to adopt new rights that have not been universally agreed upon.

The concept of "sexual orientation" rights does not appear in any of the six core UN international human rights treaties. Numerous unsuccessful attempts over the past decade have been made by international lobbyists to introduce the notion of sexual orientation into the non-discrimination clauses in UN human rights documents.

Despite these setbacks, however, UN treaty-monitoring committees are not averse to exceeding their mandate, and, in the spirit of ideologically-driven activism, are inclined to create new rights that were never consensually agreed upon.

In the event of Australia's ratifying the CEDAW protocol, it is my guess that one of the issues that will come before the CEDAW committee, sooner or later, will be Australia's refusal to accommodate same-sex marriage "rights".

To date, the CEDAW committee has made some ideologically specific calls reflected in its line of questioning when examining country reports.

For example, in the 1997 examination of Australia's report, the UN committee experts took their line of questioning from a shadow report submitted by a small, self-selected group of rather narrowly-focused Australian NGOs. Amongst the questions Australia had to take on notice from the committee, were:

• Are textbooks in Australia being changed so as to arrive at gender-equal education?

• Regarding medically-assisted reproduction, are unmarried women entitled to access to treatment? Who covers the cost?

• Why, under Tasmanian law, are single women allowed to adopt children solely in exceptional circumstances?

• What proposals does the federal government have with regard to abortion?

Regrettably, the CEDAW committee has read into the innocuous Article 12 of the UN women's convention, that seeks to provide women with health care and adequate nutrition during pregnancy and lactation, that countries such as Croatia and Italy are required to override the conscientious objections of doctors who do not want to perform abortions.

The UN CEDAW committee once took Australia to task on the strength of a seriously biased "shadow report", written largely by the Women's Electoral Lobby and soured, one suspects, by the fact that John Howard had just discontinued his predecessor Paul Keating's annual $50,000 hand-out to that radical feminist cause.

Human right?

The committee, for example, said it was "deeply concerned" that single women and lesbian couples in Australia were being "denied" their human right to have children through IVF. (Bingo! One more, spanking brand new, instant human right!).

And who recalls those privileged disgruntled women's groups complaining bitterly to that same committee that Australia's sex-discrimination laws contained an exemption for competitive sport?

The UN committee is not to be trusted. The lesson to be drawn here is that it is unwise for a nation to entrust serious issues - especially where there is deep dissent on religious, cultural and ethical grounds - to ideologically-driven "experts" that make up the majority of CEDAW committee members.

Australia should not ratify the CEDAW protocol - certainly not until the committee can be reformed.

- Mrs Rita Joseph is a Canberra-based writer on social issues whose work has been published internationally. She has represented the interests of families at major UN human rights conferences overseas.